Tag Archives: Nooksack River

Shoppers enter the Bellingham Costco store Jan. 8, 2013. City officials are continuing to work on projects designed to clear the way for development of a West Bakerview Road site that could accommodate a new Costco store. THE BELLINGHAM HERALD |Buy Photo

By JOHN STARK

THE BELLINGHAM HERALD May 16, 2014

BELLINGHAM – Lummi Nation and Fred Meyer Stores have appealed the city’s preliminary approval of wetlands, stormwater and street modifications along West Bakerview Road to accommodate a new Costco store.

The appeals will trigger a city hearing examiner review of the development proposal. In technical terms, the review will determine whether City Planning Director Jeff Thomas was justified in issuing a “mitigated determination of non-significance” for the work in and around the proposed Costco store. Thomas’ finding meant that the project could move ahead without a more extensive review of environmental issues, as long as steps were taken to deal with traffic and other impacts.

Brian Heinrich, Mayor Kelli Linville’s executive coordinator, said there was no way to know how long that process might delay final approval of the project. The hearing examiner will set a hearing date after checking with attorneys representing the tribe and Fred Meyer.

“Any delay can have an impact, but we trust the process and are confident that city staff have acted appropriately in application of our land use and environmental regulations,” Heinrich said in an email.

In a press release, Lummi Nation Chairman Tim Ballew said the appeal was based on concern about the project’s potential impact on salmon and the Nooksack River.

“Filling wetlands that nourish salmon-spawning streams is significant,” Ballew said. “It is significant to the health of the river, the Lummi people, and everyone who calls the Nooksack River watershed home. As the steward of the environment, it is the Lummi Nation’s responsibility to protect these waters and the fish that live in them.”

In an email, Heinrich said the city shares the Lummi concern with the environment and salmon. Because of those concerns, the city is following the law in requiring the project to add wetlands to make up for those that will be filled, while restoring a salmon-bearing stream.

Heinrich noted that Lummi Nation also has offered developers the opportunity to compensate for wetland-filling projects by buying shares in the tribe’s wetlands bank to help cover the cost of creating new wetlands to make up for those lost to development.

Lummi Nation has its own long-term plans for major retail development on tribally owned real estate farther north. In the past, tribal leaders have negotiated with the city of Ferndale on division of tax revenues from major retail development of tribally owned property inside that’s city’s boundaries. So far that issue has not been settled, and no specific development plans for the tribal real estate have emerged.

Fred Meyer’s objections to the West Bakerview project are based on traffic impacts on its existing store on the other side of West Bakerview.

“The proposed development will significantly and adversely affect (Fred Meyer’s) interests by, among other things, substantially interfering with access to the Fred Meyer store by unreasonably increasing traffic on West Bakerview Road.”

Seattle attorney Glenn Amster, representing Fred Meyer, asks the hearing examiner to order preparation of an environmental impact statement, or the imposition of other measures to reduce the traffic impacts.

The city already has decided to impose the cost of some traffic improvements on Costco as a condition of city approval, including the construction of added turning lanes for cars entering the site. The city will require Costco to provide a right-turn lane into the store parking lot for westbound traffic, plus an additional left-turn lane for eastbound traffic.

Costco has agreed to pay for those improvements, Heinrich said, but as yet there is no cost estimate.

The 20-acre Costco site is on the north side of West Bakerview Road near Pacific Highway.

The Lummi Nation Natural Resources Department is conducting a pilot tangle net fishery for hatchery chinook salmon that allows natural origin fish to be released without harm.

Nooksack River early chinook are part of a major population group that must be recovering before the Puget Sound chinook listed as “threatened” under the Endangered Species Act (ESA) can be delisted.

“We’re trying to conserve all the natural origin fish by using a smaller mesh net,” said Alan Chapman, ESA coordinator for the tribe. “The fish tangle by the snout, rather than the gills or body, so they can be safely released.”

Fish from the state Department of Fish and Wildlife’s North Fork Nooksack early chinook hatchery program are marked with a clipped adipose fin and/or coded-wire tag. When a tangle net is used, tribal fishermen can harvest those fish, while releasing the wild ones.

The Lummi Nation contracted with tribal fishermen Rab Washington and Johnny Olsen to fish the small mesh net, with the assistance of natural resources staff who sort the fish, take tissue and scale samples from natural origin fish before releasing them, and take scale samples and coded-wire tag information from the retained hatchery salmon.

“We hope this pilot program will lead to a closely supervised tribal fishery so we can get back to the days our elder fishers reminisce about,” said Merle Jefferson, director of Lummi Natural Resources. “Eventually, we could use the tangle net to harvest pink salmon that haven’t been available to tribal fishermen because of chinook bycatch concerns. This will also increase fishing opportunities during the spring and summer months, and help protect the fall chinook fishery from bycatch concerns.”

The decline in salmon runs has come at a great cost to Lummi fishermen, who make up one of the largest tribal fishing fleets in the country. Increasing fishing opportunities is crucial to supporting their Schelangen, or way of life, and retaining their tribal identity.

“We need to get our kids out fishing so they can understand the way it used to be and why we do what we do,” said Randy Kinley, fisherman and Lummi policy representative. “Future leaders need to remember where we came from, as it was taught to us.”

The tangle net fishery helped the tribe get one step closer to that goal by providing all of the salmon served at the Lummi Nation’s First Salmon Ceremony in May.

“Everyone in our community had an opportunity to feast on the salmon and celebrate our culture and connection to our fishing heritage at our First Salmon Ceremony,” Jefferson said.

Everyone involved in Whatcom County’s water rights disputes seems to agree that a local settlement would be a good idea, but representatives of Lummi Nation have made it clear they will not sacrifice Nooksack River salmon to benefit farms, industries or cities.

Speaking at a May 30-31 water supply symposium at the Hampton Inn in Bellingham, Lummi Nation attorney Diana Bob said the facts were clear.

Dan Kruse, left, and Robert Teton of the Lummi Natural Resources Department, use a net to try to catch juvenile salmon to count on Feb. 15, 2012 at Marine Park in Bellingham. The department counts juvenile salmon around Bellingham Bay about once every two weeks. The Lummi and Nooksack tribes have asked federal agencies to file a lawsuit on their behalf to help determine the amount of water they should be guaranteed to bolster Nooksack River salmon stock.COLIN DILTZ — THE BELLINGHAM HERALD

“We have fish dying in the Nooksack River because we do not have sufficient flows,” Bob said. “That is an unacceptable proposition to Lummi.”

The flow of water in the Nooksack and its tributaries is reduced by withdrawals of water for the city of Bellingham and Cherry Point industries, but Whatcom County farms withdraw even more to irrigate raspberries and blueberries. River water is also used to irrigate cow pastures in dry months.

Both the Lummi and the Nooksack Indian Tribe have a federally recognized right to catch Nooksack River salmon. The tribes have asked federal agencies to file a lawsuit on their behalf to force the state to take steps to define the amount of water that they should be guaranteed, to bolster the flow of water in the river and its tributaries. That likely would mean curbing the amount of water that other users are allowed to withdraw.

The tribes asked the feds to file the lawsuit more than a year ago, and so far there has been no word of a response.

Farmers admit that more than half the water they withdraw is not authorized by state law. Farm groups’ attempts to negotiate a deal with tribes have broken down, as have negotiations between the tribes and city of Bellingham. The city diverts water from the middle fork of the Nooksack River to replenish its direct water source, Lake Whatcom.

While the city has reduced its take of river water and could likely cut it even more, berry growers could be badly squeezed.

Marty Maberry, a prominent fourth-generation berry grower, said he too wanted to see salmon populations increase. He suggested that if farmers can get enough water to stay in business, they could help bolster the amount of water in streams by drilling new wells to spill into streams. He said underground water supplies are abundant in the county.

In many cases, pumping from wells also can reduce the flow of water in nearby streams, making solutions complex. But cutting off the water supply to Whatcom County farms is a poor response, Maberry said.

“The production of food and the care of the land that we farm runs as deep red in my blood … as it does in tribal members about fish,” Maberry said. “They were here first, but we were here second or third.”

He questioned the logic of taking Whatcom County fields out of production.”

We’re in the most natural place to grow food that you can find anywhere in the United States,” Maberry said, adding that putting farmers out of business because of tribal water and fishing rights would embitter the community.

Lummi representative Randy Kinley said the tribes don’t want to put farmers out of business, but they are not afraid of stirring up resentment if that’s what it takes to guarantee their rights.

“We’ve been there and I’m not afraid to go back there,” Kinley said, referring to the 1974 federal court ruling that recognized treaty fishing rights and forced dramatic reductions in salmon harvests by non-Indians.

“That’s not saying we won’t sit at the table,” Kinley said. “We want to be community members. … We hope we can keep the community together, but the community has to understand where we’re coming from. … We don’t want to put anybody out of business, but you have to understand the predicament you got yourselves into.”

Kinley and others noted that withdrawal of Nooksack water for agriculture has increased rapidly in recent years with little oversight by the state or Whatcom County.

Whatcom County’s Cherry Point is home to two oil refineries and an aluminum smelter that provide hundreds of high-wage jobs. They also use significant amounts of Nooksack River water, supplied by Whatcom County Public Utility District.

The proposed Gateway Pacific Terminal coal export pier also would use river water from the PUD. PUD spokeswoman Rebecca Schlotterback said Gateway Pacific has already lined up its water supply via a PUD contract that extends to 2042.

While the PUD has a legal right to Nooksack water to cover its industrial customers, that right (and every other Nooksack River water right) is considered “junior” to the tribes’ water rights, since they were here first. Attorney Jay Manning, former chief of staff to Gov. Chris Gregoire and former director of the Washington Department of Ecology, said the PUD’s right to its water supply is not ironclad in that situation. Other water users also may be ahead of the PUD in the water line, if the available supply of water is cut back by a court order that allocates a larger share of water to the tribes for salmon populations.

“It’s going to be a function of math,” Manning said. “Where is the PUD’s right in that chain of priority? … Will there be enough water for the PUD to honor that (Gateway Pacific) contract? We don’t know that.”

Manning urged the crowd not to despair. He said workable solutions can be developed at the local level.

Perry Eskridge, government affairs director for the Whatcom County Association of Realtors, said local solutions would be best.

“If we don’t figure this thing out on our own, it is going to be figured out for us,” Eskridge said. “Somebody with a little bit more authority is going to shove it down our throats and we are not going to like that.”

Several speakers urged people to continue to work for a local agreement. Two of those speakers suggested that the tribes still may be motivated to make a deal, because there is no guarantee that the federal government will agree to take the state to court, and no guarantee such a court action would give the tribes all the water they want for salmon.

Michael Mirande, adjunct professor at Seattle University School of Law, said legal uncertainty has spurred out-of-court settlements of thorny water rights cases elsewhere.

Jim Bucknell, northern regional manager for RH2 Engineering, agreed.”

If any one person was absolutely certain they would prevail in a lawsuit, they would have sued long ago,” Bucknell said.

Bucknell also observed that no settlement will be painless.

“If you think there’s a solution that everyone in this basin is going to love, you’re delusional,” Bucknell said.

Reach John Stark at 360-715-2274 or john.stark@bellinghamherald.com. Read his Politics blog at blogs.bellinghamherald.com/politics or follow him on Twitter at @bhamheraldpolitics.